LABOR SENATORS' DISSENTING REPORT
The Labor Senators of the Committee argue that the Safety,
Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill
2015 (the bill) represents a diminution of worker's rights, and represents the
most fundamental change to the Safety, Rehabilitation and Compensation Act
1988 (the SRC Act) since its introduction.
The Labor Senators do not agree with the Committee View expressed in the
majority report, especially with regard to section 2.67 which states:
committee takes very seriously the evidence provided by the Australian Public
Service Commission concerning the increasing incidence of allegations of
injured worker fraud. The committee regards it as imperative that greater
rigour is introduced into the assessment of compensation claims and is
confident that the changes brought in by the bill are both necessary and
sufficient to accomplish this vital task.
and section 2.185, which states:
The weight of evidence presented to the committee
during this inquiry clearly indicates that the integrity of the Comcare scheme
has been compromised and that, as a result, to continue with the scheme on its
current trajectory is financially unsustainable.
We maintain that there exists no policy justification for expanding
self-insurance under Comcare (as per the changes suggested by the Safety,
Rehabilitation and Compensation Legislation Amendment Bill 2014), or evidence
of widespread misconduct or abuse of the system that would justify the changes outlined
in this bill. Despite limited examples outlined in the bill (and on previous
occasions by Coalition Senators) the report does not demonstrate a compromise
of the scheme, and Labor Senators argue the evidence contained in the report
only demonstrates the weight of opposition to the amendments proposed by the
The outcome of these bills combined will only be to shift costs from
workers' compensation schemes to the injured worker, and therefore eventually,
the public health system. The bill does not advance the positive amendments
proposed by the Hanks Review, which would make the scheme fairer and more
effective, and instead imposes the will of the current Government to reduce
workers' rights and entitlements.
Broadly, the Government claims the bill:
emphasises the vocational (rather than medical) nature of
rehabilitation services and contains measures designed to improve return to
work outcomes under the scheme;
promotes fairness and equity in outcomes of injured employees by
targeting support for those who need it most; and
strengthens the integrity and viability of the scheme by clearly
distinguishing between work and non-work related injuries, improving the
quality of compensable medical treatment and support services, and limiting
legal and medical costs under the scheme.
However, in summary, the proposed changes in this Bill would immediately
and significantly reduce the rights and protections of workers covered by the
The bill reduces the compensation payment for the vast
majority of injured workers
Changes to eligibility rules in Schedule 1 of the bill provide a range
of new tests and exclusions from compensation. Regulations foreshadowed in the
bill, but not yet released, will provide Comcare with further and sweeping
powers to change eligibility rules. Therefore the full impact of Schedule 1 on
injured workers cannot be accurately estimated. The known changes are:
'designated injuries' and illnesses including aggravations, for
example to the heart and blood vessels; brain and blood vessels associated with
the brain; and intervertebral (spinal injuries), will face higher tests of
proof for workers to access the Comcare scheme;
the current exclusionary provision for injuries caused by 'reasonable
administrative action' will be broadened by the term 'reasonable management
action'. This will exclude any physical or psychiatric injury or illness
resulting from a directive of management unless an injured worker can prove
unreasonableness. Therefore injuries at work in a wide variety of everyday work
settings will be excluded; and
vulnerability or susceptibility to injury or disease would count
against any injured worker, which will have a particularly discriminatory
affect upon older workers and workers with disabilities.
Labor Senators argue that the changes to the bill have been introduced
to exclude as many workers as possible from the scheme, allowing costs for
employers to be lowered, creating a David versus Goliath situation with the
onus on workers. There is no restriction on the number of lawyers that Comcare
or a 'liable employer' or licensee can hire to support a denial of
compensation, yet the worker, no matter how unfairly they have been treated,
will not be able to recover more than a fraction of their legal costs, if at
Further to this, at pages 49-50 of the Regulation Impact Statement, the
Fry Actuaries conducted costings on the proposed package of changes in July
2014... the Government's package of changes will save both premium payers and
licensees between 12 per cent and 21 per cent annually. This equates to between
$62million for premium payers and $19 and $32million for  licensees.
This demonstrates the basis of the bill is a cost-saving measure.
When the Comcare scheme was introduced in 1988, the
Parliament increased workers' entitlement to a lump sum impairment payment in
part to offset their relinquishment of common law rights. This bill reduces
benefit payments for permanent impairment to up to 90 per cent of claimants
by reducing the amount of compensation payable to those suffering less than 40
per cent whole person impairment, dissolving the already meagre pain and
suffering component into the flat rate and removing the lump sum compensation
for secondary psychological conditions.
The bill also proposes to prevent those who are unable to work as a
result of a work injury from accruing leave entitlements under their workplace
agreement. Under the current scheme, such accruals are permitted for the first
45 weeks of a worker's incapacity. There is no justification for this financial
penalty against workers, and punishes workers for sustaining an injury at the
workplace, leaving them worse off over all.
Compensation entitlements would be suspended where an injured worker is
absent from Australia in excess of 6 weeks, regardless of the reasoning. Under
the current scheme, whilst a worker needs to seek approval prior to departure, compensation
is not cut off if a worker leaves the country. In circumstances where a worker
is totally unfit for work as a result of a compensable work related injury, there
is no reason to force them to stay in Australia.
New tests would also require consideration of whether the worker would
have hypothetically suffered a similar 'designated injury' at the 'same time in
the worker's life' or at the 'same stage'. Degenerative changes can happen
without any symptomatic expression and are generally asymptomatic until such
time as a work injury occurs.
To remove injured workers from a workers' compensation scheme because of
their vulnerability is unfair and inhumane. In a society where the working age
now extends beyond 65 years, and the Government has declared it expects workers
to work longer, our work force is ageing, and therefore becoming more
susceptible, on the whole, to workplace injury. This provision effectively
serves to discriminate against workers on the basis of their age, which is
The bill also allows any injury that can be said to be caused by or even
merely 'associated with' a pre-existing condition to be denied. The explanatory
memorandum at paragraph 24 explains further that:
assessing the contribution of the employment, this would require consideration
of issues such as genetic pre-disposition, prior traumatic events, and personal
and social factors which influence how a person perceives or experiences events
to which they are exposed, whether that be in their employment or everyday
This paragraph would exclude workers who are impacted by (for example)
family violence, war, heart disease or cancers linked to genetic
pre-disposition (regardless of impact of work), recovery from drug use or
psychiatric illness, family history of mental illness and so on. This would
exclude a very wide range of workers and the onus would remain on the worker to
exclude such predisposing factors.
Changes in the bill invade workers' access to medical choice
Rehabilitation and a proposed new 'Workplace Rehabilitation Plan
Framework' set out in Schedule 2 will make rehabilitation employer driven —
rather than doctor directed. Section 36H of the bill requires the employer to
consult with the injured worker's treating doctor and the employee on the
'Workplace Rehabilitation Plan Framework' but it is not necessary for the
doctor's medical opinion or the concerns of the worker to be accepted by the
Comcare could compel third parties and the worker to provide documents
about the worker, irrespective of relevance to a claim. Workers can be
sanctioned by loss of compensation rights if they fail to comply with a
document request. Comcare would be allowed by the bill to provide these
documents to third parties for purposes of disciplining the worker. Workers can
be sanctioned by loss of compensation rights if they fail to comply with a
Whilst the Government argues that these changes have been introduced to
avoid claims of unproven treatments being claimed under Comcare,
Labor Senators were unable to find any evidence that proves extensive examples of
this in practice as claimed.
Labor Senators argue that these changes invade workers' access to
medical choice and privacy. Workers have a right to privacy and confidentiality
in the management of all medical records, and have a right to choose their own
medical provider and rehabilitation service and the changes these bills
introduce would remove access to that right.
Whilst we agree that a return to work is the desired outcome in most
occasions, the ACTU gave evidence that the changes left employers with 'extraordinary
powers to direct an injured worker on the health provider they must see, and
what tasks they must undertake, even if this contradicts the opinion of an
injured worker's treating medical doctor'.
Further to these changes, the introduction of the employer-directed
Workplace Rehabilitation Plan Framework would place an onus on an injured
worker without any equivalent duty being placed on the liable employer, who
would face no penalty if they fail genuinely to engage in the rehabilitation
New job search requirements are excessively harsh on workers
The proposals in this bill would see the job search requirements for
Comcare recipients exceed those relating to Newstart recipients. The ACTU's
submission to the Committee outlined the measures in this bill that exceed the
current consideration within Social Security laws with regard to a person's
contrast the bill proposes a strict liability approach to injured worker
breaches and if they have found a breach to have occurred without an excuse the
employer considers reasonable, they notify Comcare without reference to the
personal circumstances or vulnerability of the injured worker. The employer's
obligation is simply to inform the relevant authority of breaches by the
The bill includes a new punishing approach to workers with
The current exclusionary provision for injuries caused by 'reasonable
administrative action' will be broadened under the bill, excluding any physical
or psychiatric injury or illness resulting from a directive of management
unless an injured worker can prove unreasonableness.
The new test of 'susceptibility or vulnerability' to injury or illness
will adversely affect those impacted by psychiatric injuries. Submitters claim
this would see a reversal of years of work to combat stigma about mental
illness in the workplace,
and leaves employers with no incentive to deal with workplace bullying.
The bill eliminates any lump sum payments for permanent impairment and
non-economic loss for those suffering from a secondary psychological condition.
The elimination for lump sum payments for secondary psychological injury could
lead to workers whose injuries are not neatly covered by the Act, and for whom
secondary psychological injury was their only compensable claim, being denied
benefits. Slater & Gordon outlined an example in their submission:
is a truck driver. Whilst moving a pallet during the course of his employment,
the worker assisting him, let go, leaving Tom to take the whole weight of the
pallet. Tom was unable to support the weight
and sustained a severe sudden onset of pain
in the inguinal region. Tom underwent
surgery for repair of both left and right
hernias. The hernias were repaired but
subsequent to the surgery, Tom developed sharp bilateral pain directly over the
internal inguinal ring bilaterally running to the upper medial part of the thigh
bilaterally. The symptoms were considered not to be a recurrent hernia but
rather a 'neuroma' associated with scarring in the iliohypogastric
nerve. Tom was assessed as suffering from a nil per cent in accordance with tables 8.7 and 9.13.3 of the
Comcare Guide and owing the inability to claim for
chronic pain under the Guide, was unable to make a claim for the injury,
notwithstanding its severity. Tom's only
avenue for a lump sum payment was via a psychological claim. Tom satisfied the 10 per cent threshold required
for a permanent impairment payment for his psychological condition and is
awarded approximately $36,000. Under the proposed scheme, Tom would have no
entitlement to a lump sum payment.
Workers suffering a psychiatric injury will also be impacted by the new
Schedule 14, which would see them face added complexity in claims for 'gradual
onset injury' like depression or anxiety exacerbated by workplace issues over
Labor Senators argue that the work undertaken to recognise and
destigmatise workplace psychiatric injury would be wound back by these changes
The amendments re-introduce fault as a means to bar
injured workers from compensation
Employers have a duty of care to provide a safe working environment and
workers' compensation laws must acknowledge this duty of care. As such, workers'
compensation must operate as a no-fault jurisdiction.
Since the 1980s, a fundamental feature of the Australian workers'
compensation system was the payment of benefits regardless of fault, workers
covered by the legislation merely had to prove that their injuries were work
related. Both employers and employees benefit from a no-fault system, protecting
employers from potentially damaging lawsuits. Statutory no-fault benefits were
provided in exchange for the mandatory relinquishment of the worker's right to
recover compensation for the real extent of their loss from his or her employer
under the tort of negligence, giving up common law rights. It is not just of
benefit to workers.
The bill seeks to limit or exclude workers from receiving no-fault
benefits, without returning the right to sue for injuries as a result of
employer negligence. This bill returns the Australian workers' compensation
system back to consideration of contributory negligence, where it is upon the
worker rather than the employer to ensure the workplace is safe.
These changes must be considered together with the changes outlined in
the Government's Safety, Rehabilitation and Compensation Legislation Amendment
Bill 2014, which would see injuries caused by any arguable employee misconduct
being excluded from benefits. No other workers' compensation jurisdiction
contains such a clause.
Like the aforementioned bill, the changes to Comcare in this bill stands
in complete contradiction to the implementation of the National Disability
Insurance Scheme (NDIS) and a National Injury Insurance Scheme (NIIS), which
would allow injured workers excluded from Comcare benefits to apply for
taxpayer funded NDIS care and support services, shifting the burden from the
employer back to the taxpayer.
Labor Senators note, as we have previously, that amendments to the
no-fault scheme are without evidence or research to justify such an amendment.
Labor Senators' summary view
Labor Senators agree that this bill represents the most fundamental
reform of the SRC Act since its introduction.
Labor Senators would have welcomed changes to the SRC Act that improved
the speed with which claims and disputes are processed, allowed injured workers
earlier access to rehabilitation and access to provisional medical expense
payments and improved the quality of medical treatment and attendant care, but
we do not support the broader suite of legislative proposals contained in the
Workers' compensation schemes should be designed to provide a safety net
for workers injured in workplace accidents, not as a business model to reduce
costs for employers that chips away at no-fault benefits and common law
Safe Work Australia estimates that only 5 per cent of the cost of
workplace injury is borne by the employer, with 74 per cent borne by the
workers themselves, and the remaining 21 per cent borne by the community. Any
cost shifting from employers further onto workers will only serve to exacerbate
Further to the voting down of the bill, Labor Senators suggest that the
government should establish an inquiry as a matter of urgency to examine the
extent of cost shifting by workers' compensation schemes onto injured workers
and government services, including the public health system and social security.
The Labor Senators recommend that the Senate reject the bill.
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